R v Rich (Ruling No 30) - [2009] VSC 204

IN THE SUPREME COURT OF VICTORIA

Restricted

AT MELBOURNE

No. 1535 of 2007

THE QUEEN

HUGO ALISTAIR RICH

---

JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING	11 May 2009
DATE OF RULING:	26 May 2009
CASE MAY BE CITED AS:	R v Rich (Ruling No. 30)
MEDIUM NEUTRAL CITATION:	[2009] VSC 204

---

CRIMINAL LAW – Application for discharge of the jury – application after prosecutor’s address – reference to evidence which had been the subject of earlier application for discharge – whether high degree of necessity.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Tinney SC with Mr S. Milesi	Office of Public Prosecutions
For the Defendant	Mr J. Desmond with Mr R. Edney	Doogue & O’Brien

HIS HONOUR:

This is yet a further application on behalf of the accused to discharge the jury. The application was completed on 11 May 2009 and I announced then that the application was refused and that I would publish considered reasons subsequently. I now do so.

On 7 May 2009 during the final address of the prosecutor Mr Tinney SC, counsel on behalf of the accused, Mr Desmond, indicated his intention to make an application for the jury to be discharged. In particular Mr Desmond relied on the fact that during his address, Mr Tinney had referred to a portion of the evidence given by Mr Ryan during Mr Desmond’s cross-examination of him.

The particular portion of Mr Tinney’s address to which Mr Desmond took exception was Mr Tinney’s method of dealing with the argument as to who had arranged to obtain the Fort Knox locker and the reason for it being obtained. On 9 March 2005, the day after the armed robbery and murder at North Blackburn, it is common ground the accused hired a locker at the Fort Knox storage facility in West Melbourne. The significance of the locker is that when it was examined by police executing a warrant in May 2005, items were found which included a receipt for the purchase of a black silk balaclava in January 2005. During his address (at page 4554) Mr Tinney read a portion of Mr Ryan’s evidence in cross-examination to the jury as follows:[1]:
[1]Transcript at 875

QUESTION:….can I suggest a more accurate description as to how it emerged was you had observed that there was an area in Rich's offices on the fourth floor of Little Collins Street where he clearly had a stack of documents that had been there for some time. In other words, there was no - there wasn't a great deal of storage space in the - we've said it was a three-room office set up, and you suggested to him that you were aware of this place Fort Knox where, "It would be a good place where you would have a secure unit and you could have 24-hour access where you could store some of these sort of documents, Hugo, and just get them out of the way"?
ANSWER:No, he was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Rich (Ruling No 30)

Details

AGLC: R v Rich (Ruling No 30) [2009] VSC 204
Case: [2009] VSC 204
Decision Date: 26 May 2009

CaseChat Overview and Summary

The matter before the court involved the prosecution of the respondent, Rich, for an offence under the Criminal Code. The dispute arose after the prosecutor's address to the jury, where the prosecutor referenced evidence that had been the subject of an earlier application for discharge. The court was tasked with determining whether there was a high degree of necessity that justified the prosecutor's reference to this evidence.

The primary legal issue before the court was whether the prosecutor's reference to the previously contested evidence was necessary and justified under the circumstances. The court needed to assess whether the prosecutor's conduct was such that it would necessitate the discharge of the jury. The court also had to consider the impact of the prosecutor's actions on the fairness and integrity of the trial.

In delivering its judgment, the court held that the prosecutor's reference to the previously contested evidence did not reach the high degree of necessity required to discharge the jury. The court found that the prosecutor's actions, while improper, did not prejudice the respondent to such an extent that the trial could not proceed fairly. The court emphasised the importance of maintaining the integrity of the trial process but concluded that the respondent had not been prejudiced to the point of necessitating a discharge of the jury. The court therefore dismissed the application for discharge.

Orders